Lawsuit may set a record

Last modified: 11/24/2010 12:00:00 AM
A Merrimack County Superior Court judge on Monday certified what defendants say could be the largest class action lawsuit ever in New Hampshire, against cigarette company Philip Morris USA.

The suit alleges Philip Morris violated the state's Consumer Protection Act through unfair and deceptive marketing of Marlboro Lights cigarettes.

"The light-cigarette smokers in New Hampshire who bought Marlboros are at least potentially - it will take many years - but are potentially going to receive compensation for the false statements that they were lower in tar and nicotine, and they were lighter than regular cigarettes, when in fact the tobacco is identical," said Concord attorney Chuck Douglas, the lead attorney representing the plaintiffs.

Philip Morris spokesman Steve Callahan said the company will appeal to the New Hampshire Supreme Court. "We believe granting class certification is contrary to the many decisions and laws governing class actions," Callahan said.

A U.S. Supreme Court ruling in 2008 cleared the way for class action suits against cigarette companies that manufacture "light" cigarettes to go forward in state courts. Since then, there have been numerous lawsuits filed around the country with mixed results. Class action suits have been certified in Massachusetts, Minnesota and Missouri. Judges in eight other states have rejected attempts to certify similar classes.

According to Philip Morris's filing with the Securities and Exchange Commission, there were 29 pending cases regarding the use of the word "light" or "ultra-light," as of Oct. 25, of which 15 are part of a multi-district case in federal court.

"They all have the basic factual allegation that tobacco companies engaged in consumer fraud when they put out marketing to represent that so-called 'light' cigarettes would in fact deliver less tar and nicotine to smokers and would also be less hazardous than regular cigarettes," said Edward Sweda, senior staff attorney for the Tobacco Products Liability Project at the Boston-based Public Health Advocacy Institute, which helps attorneys with tobacco litigation. "They made those representations knowing that was not the case."

The lead plaintiff in New Hampshire is Karen Lawrence of Manchester. Lawrence could not be reached yesterday. According to the suit, Lawrence bought and smoked an average of 1½ to two packs a day of Marlboro Lights for nearly 30 years. Lawrence switched from regular Marlboro brand cigarettes to Marlboro Lights about 1973, believing that light cigarettes presented reduced health risks.

"Through the misrepresentations associated with Marlboro Lights . . . (Philip Morris) represented that these cigarettes contained lower levels of tar and nicotine and were, thereby, less harmful by using words such as 'Lights' and 'Lowered Tar & Nicotine,'" Lawrence's attorneys wrote.

The lawsuit claims that Philip Morris developed a way to control the amount of tar and nicotine that registers in machine tests - which are used to determine whether a cigarette can be marketed as light - while still delivering the same amount of tar and nicotine to consumers and producing smoke that is more toxic than smoke from regular Marlboros.

Lawrence asked the judge to certify a class that includes everyone who bought Marlboro Lights in New Hampshire since Philip Morris first started selling them in 1971. Lawrence estimated that the number would be in the hundreds of thousands.

Lawrence is asking the judge to make Philip Morris pay triple the amount of either any actual damages or $1,000 per class member, plus a refund of the money customers paid for Marlboro Lights and any profits the company made from the cigarettes.

In addition to Douglas's firm, Douglas, Leonard and Garvey, Lawrence is represented by attorneys in St. Louis and Chicago from the firm of Korein Tillery, a leader in tobacco class action suits.

Philip Morris argued that a class action suit is inappropriate, since each individual plaintiff must prove that a false statement by Philip Morris caused an injury and specify the amount of that injury.

"The result would be either a never-ending legal proceeding or the violation of (Philip Morris) USA's fundamental rights and a wholesale rewriting of New Hampshire law," wrote company attorneys led by Manchester attorney Wilbur Glahn of McLane, Graf, Raulerson & Middleton. Philip Morris is also represented by attorneys from Arnold & Porter in Washington, D.C., and New York.

Philip Morris, in an objection to the class certification, said the class would "span nearly forty years of an ever-changing information environment, have an estimated 'hundreds of thousands' of members spread across the country and abroad . . . and encompass billions of transactions."

Determining who bought how many packs of cigarettes in New Hampshire would result in "thousands of mini-trials for decades to come, overwhelming this State's already burdened judiciary," company attorneys wrote.

Philip Morris claims that many of the people suing smoked Marlboro Lights in a way that resulted in less tar and less nicotine. Beginning in 1999, Philip Morris launched a public campaign to educate people that light cigarettes were light in taste and flavor and did not imply safe cigarettes.

Philip Morris USA is the country's number one cigarette maker, controlling about half of the market, said Darryl Jayson, vice president of the Tobacco Merchants Association.

Merrimack County Superior Court Judge Larry Smukler, in a 15-page order issued Monday, certified the case as a class action. The court file already takes up eight folders.

Lawrence originally filed the lawsuit in 2002, but it was put on hold pending the outcome of related cases pending before the U.S. Supreme Court, Douglas said. The Supreme Court ruled in an appeal of a Maine case in December 2008 that state lawsuits were not pre-empted by federal law and could go forward.

One state case had gone to trial earlier. An Illinois judge returned a $10.1 billion verdict against Philip Morris in 2003 - but the Illinois Supreme Court overturned the ruling, finding that the Federal Trade Commission had authorized the company to use the term "light."

Jayson said similar arguments could be used in New Hampshire.

"If the government allowed these cigarettes to be called light in the first place . . . how can they be considered breaking the law or being deceptive?" Jayson said.

The case will not necessarily change labeling practices. In 2009, Congress passed and President Obama signed the Family Smoking Prevention and Tobacco Control Act. Among other provisions, the law gives the U.S. Food and Drug Administration authority to regulate tobacco products, and it bans cigarette companies from advertising or labeling tobacco products with the words "light," "mild" or "low" without an FDA order. Companies such as Philip Morris have begun color-coding products instead, offering Marlboro Gold cigarettes instead of Marlboro Lights.

Douglas said he anticipates it will be at least a year before the case can go to trial, assuming it is not dismissed or resolved earlier.

(Shira Schoenberg can be reached at 369-3319 or sschoenberg@cmonitor.com.)


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